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Digest of the Week — Empty Land is Occupied?

2013 CarswellAlta 113 |
R. v. Legrande |
Alberta Court of Queen's Bench |
Judgment: January 14, 2013

Criminal law | Defences | Mistake or ignorance of law | Mistake of law and fact distinguished

Accused charged with unlawful moose hunting in wildlife sanctuary — For bona fide environmental reasons Crown in Right of province established wildlife sanctuary, barred all hunting by anyone within and posted notices to that effect — Accused were First Nations persons and had aboriginal right to hunt moose on Treaty lands which prima facie included sanctuary — Accused were unaware of legislative enactment barring hunting in sanctuary and "said they did not know of the existence of any wildlife sanctuary hunting prohibitions" — Accused each fired upon "decoy moose" within sanctuary — Accused defended offence charged on basis inter alia of mistake of fact — Trial judge held that asserted mistake constituted mistake of law, no defence — Accused were convicted and appealed from conviction — Appeal dismissed — Standard of review was one of correctness, as whether accused's mistake was one of law or of fact was itself question of law — Mistake of fact potentially arises where "person who is aware of the factual limits of a legal prohibition . . . factually exceeds those limits" — Mistake of law, no defence, occurs where person "engages in prohibited conduct because of their not knowing the factual limits of the prohibition" — On accused's own evidence, accused were unaware of Crown hunting ban within sanctuary itself — Accordingly, trial judge correctly held that accused were operating under mistake of law and appeal was properly dismissed.

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